5.  The applicant was born in 1962 and lives in Kraków.
6.  The applicant is an assistant professor at the Law Faculty of the Jagiellonian University in Kraków. She is also teaching at a private university. In 2009 the applicant successfully defended her habilitation thesis.
7.  From 1990 to 1994 she was the mayor of the Świątniki Górne commune. Between 1998 and 2002 the applicant served as a local councillor for the Kraków District. In July 2003 she became a local councillor in Świątniki Górne.
8.  J.B. has been the mayor of the commune (later of the municipality) since 1994. The applicant lost the elections for mayor in 1998 and 2002.
9.  In 2000 Kraków-Podgórze District Prosecutor’s Office opened an investigation into an alleged fraud by the officials of the municipality. In November 2000 the district prosecutor M.J. charged the mayor with fraud in respect of a request for a subsidy. At its extraordinary session held on 8 January 2001 the municipal council adopted a statement, apparently drafted by the mayor, which was to be transmitted to the superiors of the Kraków Regional Police Headquarters and the Kraków-Podgórze District Prosecutor’s Office as well as to the Minister of Internal Affairs and Administration, the Minister of Justice and the media. The statement read, inter alia, as follows:
“1. The Świątniki Górne Municipal Council strongly objects to using the Kraków‑Podgórze District Prosecutor’s Office for the personal and political goals of the prosecutor M.J. 2. The Świątniki Górne Municipal Council strongly objects to the political agitation against the democratically elected authorities of the local government ... carried out by K.P., the officer of the Kraków Regional Police Headquarters.
Both the above-mentioned state officials in the course of their work, in the pending proceedings, violated the principle of impartiality and political neutrality binding on state services, transgressing their professional competences.
Thus they infringed the very principle of the rule of law in a manifest breach of Article 2 of the Constitution ...
In those circumstances the municipal council strongly objects to the extralegal activities (pozaprawnej działalności) of the above-mentioned state officials and demands from their superiors that these destructive activities be immediately put to a halt and that disciplinary measures be taken against them.”
The statement of the municipal council was reported in the local media.
10.  The mayor complained to the Kraków Appellate Prosecutor’s Office about the alleged irregularities in the investigation and requested that the prosecutor M.J. be removed from it. The investigation was put under the supervision of the Appellate Prosecutor’s Office. Subsequently, the prosecutor M.J. was promoted to the position of Deputy Head of the Kraków-Śródmieście District Prosecutor. J.P., a new prosecutor assigned to the case, discontinued the investigation in October 2001.
11.  According to the applicant, from 2003 she was anonymously informed about financial and other irregularities in the mayor’s work. She and another local councillor requested the prosecution service to investigate those irregularities, but all investigations were eventually discontinued. In the applicant’s view the investigations were not thorough and the decisions to discontinue them had been based on favourable expert opinions or evidence given by the commune’s civil servants.
12.  On 25 June 2004 the mayor J.B. placed in the Rzeczpospolita daily newspaper an appeal addressed to the President of the Republic as the guardian of the Constitution. The mayor argued that the status of the Adjudicating Commissions (Komisje Orzekające w sprawach o naruszenie dyscypliny finansów publicznych) of the Regional Audit Chambers (Regionalne Izby Obrachunkowe) was incompatible with the constitutional provisions on the administration of justice and that the procedures before them violated citizens’ rights. He called on the President to introduce a bill in the parliament with a view to rectifying those supposed shortcomings.
13.  On 9 July 2004 the Polish Press Agency published on its website, in the local government section, the article “The mayor’s settling scores with the Regional Audit Chamber”. The article stated that in 2003 the Kraków Regional Audit Chamber had reviewed the finances of the mayor’s commune and had established a significant number of irregularities. It went on to say that the mayor had not mentioned his personal motives behind his appeal to the President. The Polish Press Agency invited readers to send in comments about the regional audit chambers.
14.  On 16 July 2004 the Polish Press Agency posted on its website a letter sent by the applicant. It read as follows:
“As a local councillor for Świątniki Górne I observe with indignation the actions undertaken by the mayor J.B. They serve not to promote, but to embarrass our municipality.
The methods of the mayor have been the same for years. In 2001, when he was charged with fraud ..., which amounted to misappropriation of a subsidy from the Agency for Restructuring and Modernisation of Agriculture, he was the author of a resolution [adopted] by the municipal council, which ruthlessly attacked the prosecutor conducting the proceedings and the police officer.
In the text of the resolution we found, among others, the following expressions: “both the above-mentioned state officials in the course of their work, in the pending proceedings, violated the principle of impartiality and political neutrality binding on state services, transgressing their professional competences. Thus they infringed the very principle of the rule of law. The actions of both officials directed against the local government of Świątniki Górne destabilise the functioning of Polish democracy and undermine the citizens’ confidence in state authorities.” There are more expressions of this kind in the resolution.
The reading of that text fills me, at least, with fear. Thus, the question should be asked how could such a resolution have been adopted?
The answer is simple. The mayor has a majority in the council. The councillors support him unconditionally and without any reflection.
So what happened in the end with that case? The prosecutor conducting the proceedings was soon replaced, and the case was discontinued on account of the insignificant degree of social danger (sic!), although in the reasons for the discontinuation decision the act was considered to have been clearly committed.
The fact that the State authorities went on the defensive, instead of taking appropriate measures against the person who had clearly broken the law and defamed state officials, may come as a great surprise. Thus, it is not surprising that after his first ‘success’ the mayor attacked another state authority which had established irregularities in his activities.
The irregularities established by the report of the Regional Audit Chamber are currently being examined by the prosecution service. The investigation concerning the purchase of the official car is pending. There is also a pending case concerning fraud in respect of the documents of the official car, because when the mayor was on business trips in Poland or abroad, he certified with his own signature that he had travelled a few times a day between Kraków and Świątniki Górne. It is likely that those are fake trips, and he needed to account for them in order to claim allowances for the use of his private car. It was common knowledge that he did not use it.
These proceedings conducted by the prosecution service have been artificially prolonged, which prompts me to say that the mayor is putting extralegal pressure on that authority (postępowanie to w prokuraturze jest sztucznie przedłużane, co skłania mnie do poglądu, że burmistrz czyni na ten organ pozaprawne naciski).
...
I have the impression that the State authorities are simply afraid of the mayor. This means that our State cannot counteract such sort of actions. ...”
15.  In August 2004 the mayor lodged with the Wieliczka District Court a private bill of indictment against the applicant, charging her with defamation committed through the mass media under Articles 212 § 2 of the Criminal Code. The mayor relied on the passage from the applicant’s letter which stated that “these proceedings conducted by the prosecution service have been artificially prolonged, which prompts me to say that the mayor has put extralegal pressure on that authority”.
16.  The District Court heard numerous witnesses, including prosecutors and police officers who had conducted various investigations against the mayor. They all denied that anyone had put pressure on them in respect of the investigations concerned.
17.  The court noted that it was not its role in the present proceedings to examine whether the investigations involving the mayor had been properly conducted. Neither, was it to examine whether the allegations made in the statement of the municipal council had been justified. The trial court took note of the fact that the mayor had prepared most of the resolutions of the municipal council and that he had identified himself with the statement of the municipal council of 8 January 2001.
18.  The applicant stated, inter alia, that the change of the prosecutor, who had been conducting the fraud investigation, was proof that the mayor had put extralegal pressure on the prosecution authorities. That investigation had been discontinued on the ground of the insignificant social danger of the alleged offence despite the earlier statements of the spokesperson for the Prosecutor’s Office to the effect that a bill of indictment was being prepared.
19.  On 12 September 2006 the Wieliczka District Court found the applicant guilty of defamation committed through the mass media. It held that in her letter she had imputed to the mayor J.B. behaviour which could denigrate him in the eyes of the public and undermine the public confidence necessary for the discharge of his duties. The court imposed a fine of 7,500 Polish zlotys (PLN; approx. EUR 1,900) on the applicant. It ordered her to publish the judgment on the Internet site of the Polish Press Agency for a period of two weeks and once in a local edition of Dziennik Polski, a newspaper published in Kraków. Furthermore, the trial court ordered her to reimburse the private prosecutor’s costs (PLN 1812, approx. EUR 450) and the costs of the State Treasury (PLN 763.60, approx. EUR 190).
20.  The District Court found that:
“In the present case there is no doubt that Izabela Lewandowska-Malec acted intentionally with a view to defaming the mayor J.B. She was certainly aware that the statement that he puts extralegal pressure on the prosecution service would amount to defamation in the eyes of the public. The long conflict between Izabela Lewandowska-Malec and the private prosecutor [the mayor] which manifested itself, among others, in the previous critical statements of the accused or in her press articles about the mayor of Świątniki Górne also indicates that she acted deliberately.
Article 212 §§ 1 and 2 of the Criminal Code protects reputation or the good name of a person who was defamed. ...
The statement that somebody puts extralegal pressure on the prosecution service clearly suggests that such person acts illegally and resorts, for example, to bribery or threats, etc. The word “extralegal” was important in the accused’s statement as it carried negative associations referred to above. It should be underlined that sui generis attempts to put pressure or influence the prosecution service and the proceedings conducted by it can be lawfully undertaken by means provided for by law, such as complaints to hierarchical prosecutors or appeals against decisions given in the proceedings. Such actions, whether they would be justified on the merits or not, are legal. On the other hand, the term “extralegal” refers to undertaking actions contrary to the law, which could be perceived by the public opinion only negatively. Thus, there could be no doubt that the statement included in the accused’s letter was to be considered defamation. ...
The evidence obtained in the case does not leave any doubts that the act of Izabela Lewandowska-Malec amounted to defamation of the mayor of Świątniki Górne, J.B., committed through the mass media, thus making out the elements of the offences specified in Article 212 § 2 of the Criminal Code ...”
21.  The District Court next examined whether the applicant could be exonerated on the basis of Article 213 § 2 of the Criminal Code. That provision specified that there was no defamation if the allegation was true and if bringing it to the attention of the public was in the public interest. The trial court found that the applicant could not successfully rely on that defence since she had failed to prove the truthfulness of her allegation that the mayor had put extralegal pressure on the prosecution authorities. Witnesses heard in the case did not confirm such an allegation. Having regard to this conclusion, the trial court held that there was no need to determine whether the applicant’s allegations had pursued public interest.
22.  The trial court further examined whether the applicant could have acted in the erroneous belief that her allegations against the mayor had been true. Having regard to the evidence adduced in the case, it found that there were no justified grounds for the applicant’s belief as to the truthfulness of her allegations. In this connection, the trial court observed that the applicant had long been in conflict with the mayor and on numerous occasions had requested the prosecution service to investigate the cases in which the mayor had allegedly breached the law. In some of the investigations she had succeeded in having the case remitted or reopened; however none of them had concluded with the filing of a bill of indictment. Assessing the situation objectively, the court noted that the actions of the mayor and the manner in which the investigation had been conducted could at most give rise to some doubts, but certainly did not justify the statement that the mayor had been putting extralegal pressure on the prosecution service. Furthermore, it underlined that had the applicant had suspicions regarding the mayor she should have notified the prosecution service about them with a view to having them objectively verified.
23.  The trial court examined the applicant’s argument that her statement was protected by Article 10 of the Convention. It held that it was too far‑reaching to be covered by this provision, which also protected the reputation and the rights of others. Certainly, the mayor as a person holding public office had to accept that his activity would be scrutinised and that every citizen could express his or her views with respect to the actions of the authorities. Thus, opinions in respect of a politician could concern his efficiency in governing, his ability to take decisions, his aptitude or inaptitude to hold public office. Opinions consisted in expressing one’s view on a subject open to abstract value judgment, which was not entirely measurable. However, the impugned statement of the applicant concerned the facts which were not supported by the reality of things but were based on her speculations and guesses. She could have expressed opinions regarding her doubts as to the correctness of the prosecutor’s decisions or the manner in which the investigations had been conducted, etc.; however, her statement did not fall into this category. The applicant did not formulate a value judgment but alleged that an offence had been committed and thus she asserted the existence of a fact. In so far as the applicant argued that the Press Act was applicable to her case, the trial court noted that, in any event, she had not displayed particular diligence when publishing her allegations. The trial court concluded that the applicant’s actions did not come under the right to freedom of expression guaranteed by the Constitution and the Convention. The right to criticism and to express one’s opinions did not include the right to formulate unjustified and unproved allegations that an offence had been committed. The allegation that the mayor had put extralegal pressure on the prosecution service was to be associated either with an attempt to bribe or an attempt to resort to threats or violence in order to influence a decision of a public authority.
24.  As regards the sentence, the District Court found, having regard to the applicant’s clean criminal record, that it would have been inappropriate to impose a prison sentence. It sentenced her to a fine of PLN 7,500 which it considered proportionate to her degree of guilt and the social danger of her act. It had regard to the fact that the applicant’s monthly income was in the region of PLN 4,000, that her husband was an entrepreneur and that they had three children to support.
25.  The applicant filed an appeal against the first-instance judgment on 19 October 2006. She argued that the court had disregarded her right to freedom of expression. In addition, she submitted that the court had erred in considering that it could not evaluate the various investigations conducted against the mayor, although the applicant’s critical assessment of those investigations had formed the basis for her opinion expressed in the letter.
26.  According to the applicant, after the first-instance judgment had been given, she was approached by R.M., the chairman of the municipal council and one of the closest collaborators of the mayor. The applicant together with two other councillors and her husband had met R.M. on a number of occasions. He informed them that the investigations concerning the mayor, in particular the one in respect of the alleged fraud, had been “arranged”.
27.  On 17 January 2007 the applicant filed a supplement to her appeal and requested the Regional Court to hear evidence from R.M.
28.  On 20 April 2007 the Kraków Regional Court held a hearing. The applicant requested the court to hear R.M. and other persons who had met him. The court refused that request, finding that the evidence concerned events which had occurred after the first-instance judgment had been delivered and was therefore irrelevant for the case.
29.  On the same day the Regional Court upheld the first-instance judgment, finding the applicant’s appeal manifestly ill-founded. It ordered the applicant to reimburse PLN 420 (EUR 100) to the private prosecutor for his costs.
30.  The Regional Court found that the applicant had failed to prove the truthfulness of her statement. It further held that a defamatory statement which deliberately employed untrue information was not protected under Article 10 of the Convention. As regards the sentence, the Regional Court observed that a fine was the most lenient penalty for an offence of defamation and that its amount had been proportionate to the applicant’s degree of guilt and the social danger of her act.
31.  The applicant unsuccessfully requested the Prosecutor General and the Ombudsman to file a cassation appeal in her case.
32.  The applicant further requested the Kraków Court of Appeal to reopen the proceedings. She argued that after the first-instance judgment had been given R.M. had informed her that pressure had been exerted by the mayor on the prosecutors.
33.  The Court of Appeal heard R.M. On 29 May 2008 it dismissed the applicant’s request to reopen the proceedings, finding that R.M.’s evidence had not substantiated the applicant’s allegations against the mayor.